Pennachio v. Dinapoli, 95 A.D.3d 1557 (N.Y. App. Div. 2012). · Go Syfert
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Pennachio v. Dinapoli, 95 A.D.3d 1557 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Kennedy v. Dinapoli (nyappdiv, 2019-09-12)
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Kennedy v. Dinapoli
N.Y. App. Div. · 2019 · confidence medium
In view of the foregoing, substantial evidence supports respondent's determination that petitioner did not meet his burden of establishing that the medical conditions at issue rendered him permanently disabled from the performance of his duties, and that determination will not be disturbed ( see Matter of Del Peschio v DiNapoli , 139 AD3d at 1300 ; Matter of Cantelmo v New York State Comptroller , 105 AD3d 1306, 1307-1308 [2013]; Matter of Pennachio v DiNapoli , 95 AD3d 1557, 1558 [2012]).
discussed Cited as authority (rule) Matter of Ellrodt v. DiNapoli
N.Y. App. Div. · 2019 · confidence medium
"In connection with any application for . . . performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties" ( Matter of Gonzalez v DiNapoli , 133 AD3d 1078, 1078 [2015] [internal quotation marks and citations omitted]; see Matter of Keitel v DiNapoli , 154 AD3d 1047, 1048 [2017]; Matter of Pennachio v DiNapoli , 95 AD3d 1557, 1557 [2012]).
discussed Cited as authority (rule) Matter of Studdert v. New York State Comptroller
N.Y. App. Div. · 2018 · confidence medium
Although Killian acknowledged that trauma (such as from an automobile accident) could aggravate a preexisting dormant condition and cause it to become symptomatic, he nonetheless testified — for the reasons previously set forth — that the February 2011 accident did not cause petitioner's previously existing degenerative disc disease to become [*3]symptomatic, nor did such accident cause petitioner's radiculopathy, which was his "main disabling condition." Contrary to petitioner's assertion, Killian's opinion, which was based upon his examination of petitioner and a review of the pertinent …
discussed Cited as authority (rule) Matter of Del Peschio v. DiNapoli
N.Y. App. Div. · 2016 · confidence medium
“In connection with any application for accidental or performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties” (Matter of Pellittiere v New York State & Local Police & Fire Retirement Sys., 121 AD3d 1143 , 1144 [2014] [internal quotation marks and citation omitted]; see Matter of Anderson v DiNapoli, 126 AD3d 1278, 1278 [2015]; Matter of Occhino v DiNapoli, 117 AD3d 1156, 1156 [2014]). * Notably, where conflicting medical evidence is presented, respondent is veste…
discussed Cited as authority (rule) MatterofJamesvDiNapoli
N.Y. App. Div. · 2014 · confidence medium
Petitioner bore the burden of establishing that she was permanently incapacitated from the performance of her job duties (see Matter of Weaver v DiNapoli, 108 AD3d 974, 975 [2013]; Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557 [2012]).
discussed Cited as authority (rule) James v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
Petitioner bore the burden of establishing that she was permanently incapacitated from the performance of her job duties (see Matter of Weaver v DiNapoli, 108 AD3d 974, 975 [2013]; Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557 [2012]).
discussed Cited as authority (rule) James v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
Petitioner bore the burden of establishing that she was permanently incapacitated from the performance of her job duties (see Matter of Weaver v DiNapoli, 108 AD3d 974, 975 [2013]; Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557 [2012]).
discussed Cited as authority (rule) Occhino v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
Inasmuch as the medical expert relied upon by the Comptroller “examined petitioner, reviewed his medical records and provided a rational, fact-based opinion, we find the determination to be supported by substantial evidence” (Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1558 [2012]; see Matter of Cantelmo v New York State Comptroller, 105 AD3d at 1307-1308 ).
discussed Cited as authority (rule) Occhino v. DiNapoli
N.Y. App. Div. · 2014 · confidence medium
Inasmuch as the medical expert relied upon by the Comptroller “examined petitioner, reviewed his medical records and provided a rational, fact-based opinion, we find the determination to be supported by substantial evidence” (Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1558 [2012]; see Matter of Cantelmo v New York State Comptroller, 105 AD3d at 1307-1308 ).
discussed Cited as authority (rule) Weaver v. DiNapoli
N.Y. App. Div. · 2013 · confidence medium
As an applicant for disability retirement benefits, petitioner bore the burden of establishing that he is permanently incapacitated from the performance of his job duties (see Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557 [2012]; Matter of Jackson v DiNapoli, 87 AD3d 1258, 1259 [2011]).
discussed Cited as authority (rule) Weaver v. DiNapoli
N.Y. App. Div. · 2013 · confidence medium
As an applicant for disability retirement benefits, petitioner bore the burden of establishing that he is permanently incapacitated from the performance of his job duties (see Matter of Pennachio v DiNapoli, 95 AD3d 1557, 1557 [2012]; Matter of Jackson v DiNapoli, 87 AD3d 1258, 1259 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of James G. Pennachio
v.
Thomas P. DiNapoli, as State Comptroller
Appellate Division of the Supreme Court of the State of New York.
May 17, 2012.
95 A.D.3d 1557
Lahtinen.
Cited by 11 opinions  |  Published
Lahtinen, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s application for accidental disability retirement benefits.

Petitioner, a police officer for the City of Yonkers, Westchester County, was assigned to assist with search and rescue operations at the World Trade Center site on September 12, 2001. Shortly thereafter, he started receiving medical treatment for respiratory issues. Petitioner retired from his job in April 2008 and received line of duty retirement benefits and further sought disability retirement benefits. Ultimately, respondent denied petitioner benefits on the basis that he was not permanently incapacitated from the performance of his duties. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. Petitioner bore the burden of proving that he was permanently incapacitated from the performance of the duties associated with his employment (see Matter of Camera v DiNapoli, 92 AD3d 1019, 1020 [2012]; Matter of Salik v New York State & Local Employees’ Retirement Sys., 69 AD3d 1029, 1030 [2010]).* Notably, where the medical evidence is conflicting, respondent is vested with the authority to weigh the evidence and credit one expert’s opinion over that of another (see Matter of Camera v DiNapoli, 92 AD3d at 1020; Matter of [*1558] Browne v DiNapoli, 85 AD3d 1535, 1536 [2011]). Here, petitioner presented a medical opinion from his treating physician stating that he was totally and permanently disabled from the performance of his job as a police officer due to various respiratory conditions. However, a pulmonologist who performed an independent medical examination and thoroughly reviewed petitioner’s medical records opined that he suffered from no significant impairment and met no criteria for disability. Accordingly, because the medical expert relied upon by respondent examined petitioner, reviewed his medical records and provided a rational, fact-based opinion, we find the determination to be supported by substantial evidence (see Matter of Kossifos v DiNapoli, 92 AD3d 1073, 1074 [2012]; Matter of Kaufman v Murray, 85 AD3d 1534, 1535 [2011]).

Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

It should be noted that the “World Trade Center presumption,” for which petitioner qualifies, entitles him to the presumption that any health impairment was incurred in the performance of his duty and was the natural and proximate result of an accident that was not caused by his own willful negligence, but does not shift the burden of proof with regard to permanent incapacity (see Retirement and Social Security Law § 363 [g] [1] [a]).